Reid v. Rivard

Filing 11

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, denying a Certificate of Appealability, and denying leave to proceed In Forma Pauperis on Appeal. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMONTE REID, #756082,
Petitioner,
CASE NO. 15-CV-14116
HON. GEORGE CARAM STEEH

v.
STEVE RIVARD,
Respondent.
/

OPINION AND ORDER DENYING THE PETITION FOR
A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254.

Michigan prisoner Amonte Reid (“petitioner”) was convicted of armed
robbery, MICH. COMP. LAWS § 750.529, felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and two counts of possession of a firearm
during the commission of a felony, MICH. COMP. LAWS § 750.227b, following
a jury trial in the Oakland County Circuit Court in 2012. He was sentenced,
as a third habitual offender, MICH. COMP. LAWS § 769.11, to 25 to 80 years

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imprisonment on the armed robbery conviction, a concurrent term of four to
10 years imprisonment on the felon in possession conviction, and
concurrent terms of two years imprisonment on the felony firearm
convictions to be served consecutively to the other sentences. In his
pleadings, he raises claims concerning the effectiveness of trial counsel
and the sufficiency of the evidence. For the reasons set forth, the Court
denies the petition for a writ of habeas corpus. The Court also denies a
certificate of appealability and denies leave to proceed in forma pauperis
on appeal.
II.

Facts and Procedural History
The petitioner’s convictions arise from his armed robbery of Matthew

Fugate during a drug deal at Fugate’s home in Pontiac, Michigan on
December 30, 2011. The Court adopts the summary of the trial testimony
as set forth in the prosecutor’s brief on direct appeal to the extent that it is
consistent with the record. Those facts are as follows:
Matthew Fugate testified that he lived at 842 Emerson in the
City of Pontiac. (TI, 241) Matthew’s brother, Robin Fugate, and
Brittany [Sanchez], Robin’s girlfriend, lived with defendant. On
December 30, 2011, Matthew, Robin, Brittany, and a friend
named Hector [Sanchez] were at the house on Emerson. At
approximately 2:00 p.m., Matthew received a text from “Jack
Frost Boy.” Matthew did not know his real name at the time, but
knew him through an individual named Sam Sullivan. (TI,
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239-244) Sullivan’s street name was Jack Frost. Matthew tried
to get pills from Sullivan, but Sullivan referred Matthew to Jack
Frost Boy. Matthew identified defendant in court as the person
he knew as Jack Frost Boy. (TI, 245-246)
Matthew explained that he had back problems and used
Vicodin. He had bought Vicodin from Jack Frost Boy four or five
times. Matthew stated that he had also sold Vicodin, Somas,
marijuana and Xanax in the past. (TI, 247-248) Matthew texted
defendant on December 30, 2011, that he would buy Vicodin
from defendant. (TI, 249-252) The parties stipulated to
admission of the text messages as People’s exhibit (1). (TI,
250) Matthew never had any problems with the previous
transactions with defendant. (TI, 256)
Defendant arrived at Matthew’s home in the afternoon. Matthew
heard a knock at the door and told defendant to come in.
Matthew asked Robin, Brittany, and Hector to leave the room
and they left. (TI, 256-257) Defendant entered the room while
patting himself down and said he did not have the Vicodin with
him and that he left them in the car. Defendant went back
outside, came back in, and was still patting himself down.
Defendant told Matthew he only had thirty Vicodin. Matthew told
defendant he would take whatever he had. (TI, 268)
Matthew pulled out his wallet and his phone to calculate the
cost of the thirty pills. When Matthew opened up his wallet
containing four hundred dollars, defendant said,“[G]ive it all to
me.” Matthew looked up and saw a silver gun pointed at him.
Matthew thought he was going to die and tried to defend
himself. Matthew grabbed defendant’s arm with both hands and
tried to knock the gun out of his hand. Matthew then hit
defendant in the left jaw with his right hand, but defendant was
able to turn his arm and shoot Matthew in the stomach. (TI,
268-273) Matthew indicated that he still had a scar in the
middle of his stomach from the bullet wound. (TI, 269) After
being shot, Matthew fell to the ground. Matthew’s leg was
hurting. Matthew saw his brother come running around the
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corner and then he heard a second shot. That was all Matthew
remembered because he blacked out. (TI, 273-274) Matthew
stated that he did not pull the trigger on the gun. Matthew’s
wallet was taken. (TI, 274)
Matthew went to Pontiac Osteopathic Hospital for medical care.
As a result of the gunshot wound, Matthew got a hernia.
Matthew’s leg still hurts now and it was hard for him to walk up
and down stairs. (TI, 276-277) While Matthew was in the
hospital, a detective showed him a photo lineup of six different
photos. Matthew identified photo number three as the person
who shot him. Matthew circled photo number three and signed
his name. The photo lineup was admitted as People’s exhibit
(11). (TI, 277-280) Matthew also showed the detective his
phone and the text messages he had received. (TI, 280)
On cross-examination, Matthew stated that he did not tell the
detective prior to the preliminary examination in March of 2012
that he was a drug dealer. (TI, 283) Matthew received a text
message at 1:30 p.m. on December 30, 2011, from someone
named EJ asking if he had some Somas. Matthew explained
that Somas were muscle spasm pills. (TI, 285) Matthew texted
Leroy, another “associate,” asking him if he had Somas and
telling him he would “grab” 86 of them from him. (TI, 286-287)
Then Jack Frost Boy texted Matthew that he had 165 Vicodin
pills and Matthew told him he would take 100 pills and another
65 pills later. (TI, 287-288) Matthew had not seen Hector since
the day of the incident. (TI, 295-296) Matthew may have had
marijuana in his system at the hospital. (TI, 298)
Raymond Wiggins, a deputy with the Oakland County Sheriff’s
Department, testified that on December 30, 2011, at
approximately 4:24 p.m. he was dispatched to 842 Emerson in
Pontiac regarding a shooting victim. (TII, 12-14) Wiggins arrived
at the home and entered through the front door. Matthew
Fugate was lying on the living room floor with a gunshot wound
to the stomach. (TII, 16) There was also a female subject
present, as well as Robin Fugate, the brother of Matthew. (TII,
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18-19) Matthew appeared to be coming in and out of
consciousness. Emergency medical technicians arrived and
attended to Matthew’s injuries. (TII, 20)
Wiggins observed one spent shell casing at the front door and
another spent casing at the north end side of the house.
Wiggins was advised that there were two dogs in the house and
one had been shot. (TI, 22)
Brittany Sanchez testified that on December 30, 2011, she lived
at 842 Emerson in Pontiac with Matthew and Robin Fugate.
(TII, 26-27) Brittany was dating Robin. At approximately 4:00
p.m. on December 30, Brittany was at home with Matthew,
Robin, and Hector Sanchez. (TII, 28) Hector was a friend of the
Fugate brothers. (TII, 29) Brittany heard someone knock at the
door and Robin told Matthew to answer the door. (TII, 29)
Brittany was in the kitchen with Robin when she heard two
pops. (TII, 30) Brittany ran to the back door because she was
pregnant and did not want to get hurt. (TII, 30-31) Robin ran
towards Matthew. (TI, 31) Brittany went to check to see if
everybody was okay. Robin was on the phone to the police and
Matthew was on the floor in front of the bathroom. Brittany
indicated that she did not see any blood, but Matthew was hurt
and could not move his right leg. (TII, 32) Robin was applying
pressure to the wound. (TII, 33) Their Pit Bull puppy, Boots,
was shot. (TI, 34)
On cross-examination, Brittany stated that she never saw the
person that entered the house. According to Brittany, Robin
and Hector were not present when Matthew had a discussion
with the person that entered the house. (TII, 36)
Robin Fugate testified that he lived at 842 Emerson in Pontiac
with his brother, Matthew Fugate, and his girlfriend, Brittany
Sanchez. (TII, 45-46) At approximately 4:15, a person knocked
at their door and Robin identified defendant in court as that
person. (TII, 50-51) Matthew let defendant in. (TII, 51) Robin
knew that Matthew had bought Vicodin pills from defendant a
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couple of times. (TII, 52) Robin stated that he was in the room
while Matthew and defendant discussed some things.
Defendant left the house, went out to his car, and then walked
back in patting himself down. (TII, 53) Robin left the room and
went to the kitchen. While in the kitchen, Robin heard a
gunshot and a thud. Robin walked towards the living room and
heard a re-rack sound. Robin peeked his head around the
corner and it looked like defendant was going to shoot at him,
but then he turned ninety degrees and shot at the dog. (TII,
54-55) As defendant was leaving, Robin observed a gun, a
wallet, and phone in defendant’s hands. (TII, 55) Hector was in
the living room, right next to Matthew. (TII, 56)
Robin called the police. He pulled up Matthew’s shirt and
observed a big hole on the left side of his stomach. Matthew
was not able to move. (TII, 57) The police and emergency
medical technicians arrived quickly. The police took Robin,
Brittany, and Hector to the police station. (TII, 58) The police
interviewed Robin and asked him to look at two photo lineups.
Robin did not see defendant in the first lineup, but he did
identify defendant in the second line up as the person who
shot. The photo lineup was admitted as People’s exhibit (12).
(TII, 58-61)
On cross-examination, Robin stated that he knew Matthew was
dealing in something, he just did not know what. (TII, 63) Hector
was a good friend to Matthew and Robin. Matthew did not sell
drugs to Hector. (TII, 64) Robin wrote out a statement to the
police. Robin did not actually see defendant shoot Matthew.
(TII, 67) The next day, Robin spoke with a detective. Robin
denied telling the detective that he answered the door. (TII, 73)
Robin stated that Hector was not in the kitchen at the time the
shooting occurred, but that he was in the living room. (TII,
77-78)
Claudio Lopez, a deputy with the Oakland County Sheriff’s
Department, testified that on December 30, 2011, he was
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dispatched to 842 Emerson in Pontiac regarding a shooting that
occurred at the residence. (TII, 85-86) When he arrived at the
location, emergency medical services were already there and
treating the victim. (TII, 85-86) The victim was lying on the floor
in the living room. Lopez observed a hole in the victim’s
stomach and there was blood.(TII, 86-87) There was a Pit Bull
dog in the bathroom with an injury to his ribcage and his foot.
There was a blood trail in the living room, hallway, and
bathroom. (TII, 87-88)
Rachel Grace, a firearm and tool mark examiner and crime
scene investigator for the Oakland County Sheriff’s
Department, was qualified as an expert in the field of firearms
identification. (TII, 95) On December 30, 2011, Grace went to
842 Emerson in Pontiac to process a shooting scene. (TI, 96)
Grace took photographs of everything that she observed. She
marked where the evidence should be, drew a sketch, and
collected the evidence. (TI, 97) Grace observed and collected a
fired bullet, two fired cartridge cases, and some suspected
blood. (TI, 98, 108) The fired cartridges were 380 caliber
Remington Peters. (TII, 110) Grace received a bullet from
Pontiac Osteopathic Hospital that was taken from the victim.
(TII, 112) It was determined that the two fired cartridges were
fired from the same firearm. (TII, 114)
On cross-examination, Grace explained that she was not able
to indicate the manufacturer of the weapon. It could have been
an automatic or semi-automatic weapon. (TII, 118-119) The
shells could have been fired by a .380 or a 9mm weapon. (TII,
119) Grace did not do any testing of the blood to determine if it
was human blood. (TII, 120)
John MacDonald, a detective with the Oakland County Sheriff’s
Office, testified that he went to the scene at 842 Emerson in
Pontiac on December 30, 2011. MacDonald was met by Deputy
Lopez. When he entered the home, MacDonald observed a
shell casing next to the door and a lot of blood next to the
hallway on the living room floor. (TII, 127-129) MacDonald
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observed another fired cartridge case in the living rom. (TII,
130) MacDonald spoke with Matthew at Pontiac Osteopathic
Hospital. Matthew was laying on his back, he had a mask for
breathing, and he was in a lot of pain. (TII, 131) MacDonald had
a brief conversation with Matthew and took custody of
Matthew’s cell phone. Matthew showed MacDonald that he had
done a calculation on his cell phone of 30 Vicodin at 2.50 a
piece. (TII, 131-132)
Matthew told MacDonald that he met defendant through Sam
Sullivan. MacDonald spoke with Sullivan at the Pontiac police
substation. (TII, 133-134) MacDonald showed photo lineups to
Sullivan, Matthew, and Robin. (TII, 134-136) MacDonald
interviewed defendant on January 4, 2012. MacDonald
identified defendant in court as the person he interviewed. (TII,
136) Defendant signed the Miranda waiver form. (TII, 139) The
video of defendant’s interview was admitted as People’s exhibit
(31) and the transcript of the video was admitted as People’s
exhibit (32). (TII, 141) The video of defendant’s interview was
played for the jury. (TII, 147)
MacDonald stated that defendant told him he had no
involvement in the incident at 842 Emerson. Defendant denied
going to that location or selling pills. (TIII, 5-6) MacDonald gave
defendant numerous opportunities to explain what happened.
MacDonald brought up the issue of self-defense and defendant
did not say anything about that. (TIII, 7)
MacDonald spoke with defendant again on January 5, 2012.
That interview was not recorded. Defendant was advised again
of his rights. Defendant told MacDonald that he was actually at
the address and that Sullivan contacted him to do a drug
transaction for him. Defendant was picked up by his girlfriend,
Carla Versolli, and they went to Sullivan’s home. Defendant
was given the pills and he went to 842 Emerson. The sale was
supposed to be ninety Vicodin for two-hundred and fifty dollars.
Sullivan gave defendant a phone number and address. (TIII,
8-10)
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Defendant told MacDonald that Matthew Fugate said he could
only pay for thirty pills and defendant started counting out the
thirty pills when Matthew pulled a gun on him. (TIII, 10)
Matthew told defendant, “[D]on’t move.” Defendant stated that
he grabbed the gun and pushed up and they both fell
backwards onto the couch. Defendant told MacDonald that he
was able to “spin” the gun so the barrel was not pointing at him,
and it went off. Defendant thought he might have been shot, but
he checked his clothing and realized he was not shot. (TIII,
11-13) Defendant told MacDonald that he was running out of
the door when Robin fired a round at him. (TIII, 13) Defendant
told MacDonald that he changed his phone number so he could
not be tracked. (TIII, 14) MacDonald was unable to locate
Versolli for trial. (TIII, 15-16)
On cross-examination, MacDonald stated that he did get a
written statement from Versolli. Versolli had no information
about what happened in the house and she did not tell
MacDonald that defendant had a gun. (TIII, 16-17) MacDonald
stated that no one ever told him that three shots were fired.
(TIII, 25) Robin told MacDonald that he was the person that
answered the door and told Matthew that his “peoples” were
there. (TIII, 31) Robin told MacDonald that he was in the room
until Matthew was about to pay. (TIII, 32) Robin never told
MacDonald that as defendant ran, he turned around and shot
the dog. (TIII, 33) No one ever told MacDonald that Hector was
sitting in the living room during the transaction. (TIII, 38)
The parties stipulated that (1) defendant was convicted of a
felony and the requirements for regaining eligibility were not
met, (2) defendant’s cell phone number on December 30, 2011,
was 313-974-1217 and defendant changed his number on
December 31, 2011, to 313-784-3983, and (3) defendant’s
interview was edited to contain only the portions that were
relevant to this case, and were admitted as People’s exhibits
(33), (34), and (35). (TIII, 43)
The People rested. (TIII, 44)
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Defendant chose not to testify. (TIII, 49) The defense rested.
(TIII, 59)
Pros. App. Brf., pp. 1-9 (footnotes omitted).
Following his convictions and sentencing, the petitioner pursued an
appeal of right with the Michigan Court of Appeals raising the claims
presented on habeas review. The court denied relief on those claims and
affirmed his convictions. People v. Reid, No. 312792, 2014 WL 688643
(Mich. Ct. App. Feb. 20, 2014) (unpublished). The petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Reid, 497 Mich. 854, 852
N.W.2d 620 (2014).
The petitioner then filed his federal habeas petition. He raises the
following claims:
I.

Trial counsel was ineffective for failing to present the
defense of temporary innocent possession of a firearm
and for failing to request a jury instruction on unarmed
robbery.

II.

The prosecution presented insufficient evidence to
support his armed robbery conviction.

The respondent has filed an answer to the petition contending that it should
be denied.

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III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of
review that federal courts must use when considering habeas petitions
brought by prisoners challenging their state court convictions. The AEDPA
provides in relevant part:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim-(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ ... clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme
Court cases]’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540
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U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably
applies that principle to the facts of petitioner’s case.” Wiggins v. Smith,
539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also
Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state
court’s decision must have been more than incorrect or erroneous. The
state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529
U.S. at 409. The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24
(2002) (per curiam)).
A state court’s determination that a claim lacks merit “precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the

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correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Supreme Court has emphasized “that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.”
Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to §
2254(d), “a habeas court must determine what arguments or theories
supported or ... could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision”
of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal
court, a state prisoner must show that the state court’s rejection of his claim
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697,
1702 (2014). Federal judges “are required to afford state courts due
respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Woods v. Donald, _ U.S. _, 135
S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it
is within the “realm of possibility” that fairminded jurists could find the state

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court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct.
1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision comports with clearly
established federal law as determined by the Supreme Court at the time
the state court renders its decision. Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme
Court “has held on numerous occasions that it is not ‘an unreasonable
application of clearly established Federal law’ for a state court to decline to
apply a specific legal rule that has not been squarely established by this
Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per
curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d)
“does not require a state court to give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at
100. Furthermore, it “does not require citation of [Supreme Court]
cases–indeed, it does not even require awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16. The requirements of clearly established law are to

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be determined solely by Supreme Court precedent. Thus, “circuit
precedent does not constitute ‘clearly established Federal law as
determined by the Supreme Court’” and it cannot provide the basis for
federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per
curiam). The decisions of lower federal courts, however, may be useful in
assessing the reasonableness of the state court’s resolution of an issue.
Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.
Supp. 354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner
may rebut this presumption only with clear and convincing evidence.
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas
review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
IV.

Analysis
A.

Ineffective Assistance of Trial Counsel Claims

The petitioner first asserts that he is entitled to habeas relief because

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trial counsel was ineffective for failing to raise the defense of temporary
innocent possession of a firearm and for failing to request a jury instruction
on unarmed robbery. The respondent contends that these claims lack
merit.
The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right to the effective assistance of trial counsel. To
prevail on an ineffective assistance of counsel claim, a habeas petitioner
must show that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). As to the performance prong, a petitioner must identify
acts that were “outside the wide range of professionally competent
assistance” in order to prove deficient performance. Id. at 690. There is a
strong presumption that trial counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The petitioner bears the burden of overcoming the
presumption that the challenged actions were sound trial strategy. The
reviewing court’s scrutiny of counsel’s performance is highly deferential.
Id. at 689. To satisfy the prejudice prong, a petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability is one that is sufficient to undermine confidence in
the outcome of the proceeding. Id. “On balance, the benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the
[proceeding] cannot be relied on as having produced a just result.” Id. at
686.
The Supreme Court has confirmed that a federal court’s
consideration of an ineffective assistance of counsel claim arising from
state criminal proceedings is quite limited on habeas review due to the
deference accorded trial attorneys and state appellate courts reviewing
their performance. “The standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations
omitted). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. Rather, the question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential
standard. Id.
The petitioner first asserts that counsel was ineffective for failing to

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raise the defense of temporary innocent possession of a firearm. Citing the
Strickland standard, the Michigan Court of Appeals denied relief on this
claim essentially ruling that the petitioner could not show that trial counsel
was ineffective because the defense was inapplicable to his case. The
court explained in relevant part:
Under MCL 750.224f(1), a “person convicted of a felony shall
not possess, use, transport, sell, purchase, carry, ship, receive,
or distribute a firearm in this state” unless certain conditions are
met. In People v. Dupree, 284 Mich App 89; 771 NW2d 470
(2009) (Opinion by M.J. Kelly, J.), aff'd in part and remanded,
486 Mich 693; 788 NW2d 399 (2010), this Court addressed the
question whether traditional common-law defenses might apply
to the crime of felon in possession of a firearm. Id. at 101–102.
This Court concluded that “the defenses of duress and
self-defense are still applicable to a charge of being a
felon-in-possession.” Id. at 104. “[A] defendant who is otherwise
prohibited from possessing a firearm will only be justified in
temporarily possessing a firearm if the possession is
immediately necessary to protect the defendant or another from
death or serious physical harm.” Id. at 106. Further, to be
justified in temporarily possessing a firearm, the defendant
must not have “recklessly or negligently place[d] himself or
herself in a situation where he or she would be forced to
engage in criminal conduct.” Id. at 108.
Our Supreme Court affirmed this Court's result, holding that the
defendant must introduce “sufficient evidence from which the
jury could [conclude] that he violated the felon-in-possession
statute but that his violation could be justified because he
honestly and reasonably believed that his life was in imminent
danger and that it was necessary for him to exercise force to
protect himself.” Dupree, 486 Mich at 697.

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In this case, defendant told Detective MacDonald that he went
to the victim's house to sell drugs to the victim. The victim's
testimony was that defendant came to his house to sell Vicodin.
After entering the home, defendant said he had left the pills in
his car. When he returned, according to the victim, defendant
pointed a gun at him and said to give him all of the money in his
wallet. Thus, the evidence established that defendant placed
himself in a position to engage in criminal conduct and was not
justified in temporarily possessing the firearm. Accordingly,
defense counsel cannot be deemed ineffective for failing to
raise the defense of temporary innocent possession of a
firearm to the charge of felon in possession of a firearm.
Armstrong, 490 Mich at 289–290.
Reid, 2014 WL 688643 at *1-2.
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The
petitioner fails to establish that trial counsel erred and/or that he was
prejudiced by counsel’s conduct. As discussed by the Michigan Court of
Appeals, the defense of temporary innocent possession was inapplicable
under state law given the victim’s testimony and the petitioner’s admissions
about participating in a drug transaction. It is well-settled that “a state
court’s interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting on habeas
review.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975) (state courts are the final arbiters of state

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law); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Consequently,
the petitioner cannot establish that trial counsel erred or that he was
prejudiced by counsel’s conduct. Defense counsel cannot be deemed
ineffective for failing to make a futile or meritless argument. See Coley v.
Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is
neither professionally unreasonable nor prejudicial.”); United States v.
Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Moreover, given the victim’s
testimony that the petitioner pulled the gun during the incident, as well as
the petitioner’s own admissions about engaging in a drug transaction, trial
counsel may have reasonably concluded that raising temporary innocent
possession of a firearm as a defense to the charges was inappropriate.
Given the trial testimony, such a defense also lacked merit. The petitioner
fails to establish that trial counsel was ineffective under the Strickland
standard. Habeas relief is not warranted on this claim.
The petitioner next asserts that trial counsel was ineffective for failing
to request a jury instruction on unarmed robbery. Citing the Strickland
standard, the Michigan Court of Appeals denied relief on this claim ruling
that trial counsel was not ineffective because an unarmed robbery
instruction was not warranted based upon the evidence presented at trial.

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The court explained:
“Unarmed robbery is clearly a necessarily included lesser
offense of armed robbery.” People v. Reese, 466 Mich 440,
446–447; 647 NW2d 498 (2002). The “instruction is proper if
the charged greater offense requires the jury to find a disputed
factual element that is not part of the lesser included offense
and it is supported by a rational view of the evidence.” Id. at
446.
The elements of armed robbery, MCL 750.529, are: (1) the
defendant was engaged in the course of committing a larceny
of any money or other property, (2) the defendant used force or
violence against a person who was present or assaulted or put
the person in fear, and (3) the defendant, in the course of
committing the larceny, possessed a real or feigned dangerous
weapon or represented that he or she possessed a dangerous
weapon. People v. Chambers, 277 Mich App 1, 7; 742 NW2d
610 (2007). The elements of unarmed robbery, MCL 750.530,
are: (1) the felonious taking of the property of another, (2) by
force or violence or assault or putting in fear, when (3) the
defendant is unarmed. People v. Harverson, 291 Mich App 171,
177; 804 NW2d 757 (2010). The element distinguishing
unarmed robbery from the offense of armed robbery is the use
of a weapon or an article used as a weapon. Reese, 466 Mich
at 501.
Defendant told Detective MacDonald that “he was able to get
both hands on the gun and spin it and the gun went off.” Then,
according to defendant's version, defendant dropped the gun
and the victim's brother came into the room, picked up the gun,
and fired a round at defendant as he was leaving the house.
We hold that a rational view of the evidence did not support an
unarmed robbery jury instruction. The jury would have to find
that the victim pulled a gun on defendant in order to commit
armed robbery of the pills, but that defendant was able to grab
the gun with both hands and turn it around facing the victim,
whereupon the gun went off and fell to the floor. Then, the jury
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would have to find that, after the victim was shot, defendant
used force or violence or assault or put the victim in fear,
without the use of a weapon, in order to steal the victim's wallet
and cell phone. However, the victim was already shot and on
the floor unable to move when defendant picked up the wallet
and cell phone from the floor, and defendant could have simply
reached down and picked the items up before leaving the
residence. We hold that, because a rational view of the
evidence could not support an unarmed robbery jury
instruction, defense counsel was not ineffective for failing to
request the jury instruction. Furthermore, the failure to request
the instruction may have been deliberate trial strategy to force
the jury into an “all or nothing” verdict. People v. Rone (On
Second Remand), 109 Mich App 702, 718; 311 NW2d 835
(1981). Defendant has failed to demonstrate that defense
counsel's performance was objectively unreasonable or that he
was prejudiced by defense counsel's defective performance.
Armstrong, 490 Mich at 289–290.
Reid, 2014 WL 688643 at *2.
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The
petitioner fails to establish that trial counsel erred and/or that he was
prejudiced by counsel’s conduct in this regard. The Michigan Court of
Appeals determined that the unarmed robbery instruction was
inappropriate as a matter of state law. As discussed supra, “a state court’s
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting on habeas review.”
Bradshaw, 546 U.S. at 76; see also Mullaney, 421 U.S. at 691; Sanford,
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288 F.3d at 860. The petitioner thus cannot establish that counsel erred or
that he was prejudiced by trial counsel’s conduct. Defense counsel cannot
be deemed ineffective for failing to make a futile or meritless argument.
Coley, 706 F.3d at 752; Steverson, 230 F.3d at 225; see also Goodwin v.
Johnson, 632 Fl3d 301, 317 (6th Cir. 2011) (counsel cannot be ineffective
for failing to seek a jury instruction on a lesser offense that it not warranted
by the evidence). Moreover, trial counsel may have decided to pursue an
all-or-nothing strategy in the hope that the jury would acquit the petitioner
of armed robbery. Such a strategy was reasonable. The fact that it was
ultimately unsuccessful does not mean that counsel was ineffective. Moss
v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002). The petitioner fails to
establish that trial counsel was ineffective under the Strickland standard.
Habeas relief is not warranted on this claim.
B.

Insufficient Evidence Claim

The petitioner also asserts that he is entitled to habeas relief because
the prosecution presented insufficient evidence to support his armed
robbery conviction. The respondent contends that this claim lacks merit.
The federal due process clause "protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact

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necessary to constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364 (1970). The question on a sufficiency of the evidence
claim is "whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979). The Jackson standard must be applied "with
explicit reference to the substantive elements of the criminal offense as
defined by state law." Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)
(quoting Jackson, 443 U.S. at 324 n. 16).
A federal habeas court views this standard through the framework of
28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002).
Thus, under the AEDPA, challenges to the sufficiency of the evidence
"must survive two layers of deference to groups who might view facts
differently" than a reviewing court on habeas review – the factfinder at trial
and the state court on appellate review – as long as those determinations
are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). "[I]t
is the responsibility of the jury – not the court – to decide what conclusions
should be drawn from the evidence admitted at trial." Cavazos v. Smith,
565 U.S. 1, 2 (2011) (per curiam). "A reviewing court does not re-weigh

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the evidence or re-determine the credibility of the witnesses whose
demeanor has been observed by the trial court." Matthews v. Abramajtys,
319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S.
422, 434 (1983)). Accordingly, the "mere existence of sufficient evidence
to convict . . . defeats a petitioner's claim." Id. at 788-89.
Under Michigan law, the elements of armed robbery are: (1) an
assault, (2) a felonious taking of property from the victim's presence or
person, (3) while the defendant is armed with a weapon described in the
statute. See MICH. COMP. LAWS § 750.529; People v Smith, 478 Mich. 292,
319, 733 N.W.2d 351 (2007); People v. Rodgers, 248 Mich. App. 702, 707,
645 N.W.2d 294 (2001); see also People v. Chambers, 277 Mich. App. 1,
7, 742 N.W.2d 610 (2007) (indicating that the assault component means
that the defendant used force or violence against any person who was
present or assaulted or put the person in fear). Identity is an element of
every offense. People v. Yost, 278 Mich. App. 341, 356, 749 N.W.2d 753
(2008). Direct or circumstantial evidence and reasonable inferences
arising from that evidence may constitute satisfactory proof of the elements
of an offense, People v. Nowack, 462 Mich. 392, 399-400, 614 N.W.2d 78,
81 (2000); People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177, 180

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(1993), including identity, People v. Kern, 6 Mich. App. 406, 409-10, 149
N.W.2d 216 (1967), and intent or state of mind. People v. Dumas, 454
Mich. 390, 398, 563 N.W.2d 31 (1997).
Applying the Jackson standard, the Michigan Court of Appeals
denied relief on this claim. The court explained in relevant part:
Viewed in a light most favorable to the people, a reasonable
juror could find that defendant was guilty of armed robbery
beyond a reasonable doubt. Defendant argues that nowhere in
his testimony did the victim ever state that he was fearful or
afraid of defendant at any time. Thus, the evidence was not
sufficient to support the armed robbery verdict. This argument
is without merit. At trial the prosecutor asked the victim what he
was thinking when he saw the gun. The victim responded: “I
was thinking, wow, I'm about to die, you know, like I'm just
defending myself. I didn't really think nothing. I'm try to, just do
what any other person would do, defend yourself.” The trial
court instructed the jury, in pertinent part, that to prove armed
robbery the prosecutor must show that “the defendant used
force or violence against, and/or put in fear [the victim].”
Here, the use of “and/or” in the jury instruction is the source of
defendant's challenge. If the language of a statute is
unambiguous, it is presumed that the Legislature intended the
meaning plainly expressed, and judicial construction of the
statute is not permitted. People v. Cole, 491 Mich 324, 325,
330; 817 NW2d 497 (2012). When interpreting the common
ordinary meaning of a word or phrase, use of a dictionary is
appropriate. People v. Laidler, 491 Mich 339, 347; 817 NW2d
517 (2012).
The word “and” is defined in pertinent part in The American
Heritage Dictionary of the English Language, Third Edition
(1992), as: “Together with or along with; in addition to; as well
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as.” The word “or” is defined in pertinent part as: “Used to
indicate an alternative, usually only before the last term of a
series.” Considering these definitions, the statutory phrase “the
defendant used force or violence against, assaulted, and/or put
in fear (emphasis added),” would be better understood as, “the
defendant used force or violence against, or assaulted, or put in
fear, or all of the above.” We conclude that “and/or,” while it
may not be the preferred way to state alternatives, is not
ambiguous, and its meaning is understood by the general
public and the Legislature intended “the meaning plainly
expressed.”
The phrase “put in fear” is one alternative in a list. Therefore, it
is not necessary that the prosecutor prove that defendant put
the victim in fear as long as the prosecutor presented sufficient
evidence that defendant used force or violence against the
victim, or assaulted the victim. Nevertheless, the evidence,
viewed in a light most favorable to the prosecutor, was
sufficient to show that defendant used violence against the
victim and assaulted the victim and placed the victim in fear.
“Because it is difficult to prove an actor's state of mind, only
minimal circumstantial evidence is required.” People v.
McGhee, 268 Mich App 600, 623; 709 NW2d 595 (2005). The
fact that defendant pointed a gun at the victim and demanded
his money was “minimal circumstantial evidence” that the victim
was placed in fear. Id. Viewed in a light most favorable to the
people, we hold that a reasonable juror would find defendant
guilty of armed robbery beyond a reasonable doubt.
Defendant additionally contends that because the jury acquitted
him of assault with intent to commit murder and the lesser
included offense of assault with intent to do great bodily harm, it
could not find sufficient evidence to satisfy the first element of
armed robbery, which requires an assault. We disagree.
Assault with intent to commit murder and assault with intent to
commit great bodily harm less than murder are specific intent
crimes and require the prosecutor to show that the defendant
had the specific intent to murder or to inflict serious injury of an
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aggravated nature. People v. Marshall, 493 Mich 1020; 829
NW2d 876 (2013); People v. Brown, 267 Mich App 141, 147;
703 NW2d 230 (2005). Armed robbery is a specific intent crime
and requires the prosecutor to show that the defendant had the
specific intent to permanently deprive the victim of property.
People v. Lee, 243 Mich App 163, 167–168; 622 NW2d 71
(2000); People v. Parker, 230 Mich App 337, 344; 584 NW2d
336 (1998). The verdict rendered by the jury reflects that it
believed defendant had the specific intent to rob the victim but
not to commit great bodily harm or murder. Thus, acquitting
defendant of the assault offenses did not negate the jury
conviction of armed robbery.
Reid, 2014 WL 688643 at *3-4.
The state court's decision is neither contrary to Supreme Court
precedent nor an unreasonable application of Supreme Court precedent or
the facts. The prosecution presented sufficient evidence to establish the
petitioner's guilt of armed robbery through the testimony of the victim and
the other witnesses, as well as reasonable inferences from that testimony.
To be sure, a victim’s testimony alone can be constitutionally sufficient to
sustain a conviction. See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir.
2008) (citing cases). In particular, the victim testified that the petitioner
pulled a gun on him during their drug transaction and demanded all of his
money, that he thought he was going to die, that he struggled with the
petitioner, that the petitioner shot him, and that the petitioner took his
wallet. Such testimony was sufficient to support the petitioner’s armed
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robbery conviction. The fact that the jury acquitted the petitioner of assault
with intent to commit murder (and/or assault with intent to commit great
bodily harm) indicates that the jury did not find sufficient evidence of the
intent to commit murder or serious bodily injury; it does not mean that there
was insufficient evidence of the assault necessary to support a conviction
under the armed robbery statute.
The petitioner contests the Michigan Court of Appeals’ interpretation
of the armed robbery statute under state law. Such a claim is not
cognizable upon habeas review. As discussed supra, "a state court's
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting on habeas review."
Bradshaw, 546 U.S. at 76; Sanford, 288 F.3d at 860. State courts are the
final arbiters of state law and federal courts will not intervene in such
matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809
F.2d 326, 328 (6th Cir. 1987). Habeas relief does not lie for perceived
errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The petitioner also seems to challenge the credibility of the witnesses
and the inferences the jury drew from the testimony presented at trial.
However, it is the job of the fact-finder at trial, not a federal habeas court, to

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resolve evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell,
280 F.3d 594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70
(6th Cir. 1983) ("A federal habeas corpus court faced with a record of
historical facts that supports conflicting inferences must presume - even if it
does not affirmatively appear in the record - that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that
resolution."). The jury's verdict, and the Michigan Court of Appeals'
decision affirming that verdict, were reasonable. The evidence presented
at trial, viewed in a light favorable to the prosecution, established beyond a
reasonable doubt that the petitioner committed an armed robbery. Habeas
relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that the petitioner is not

entitled to federal habeas relief on his claims. Accordingly, the Court
DENIES and DISMISSES WITH PREJUDICE the petition for a writ of
habeas corpus.
Before the petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P.
22(b). A certificate of appealability may issue “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a court relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Having conducted the
requisite review, the Court concludes that the petitioner fails to make a
substantial showing of the denial of a constitutional right as to his claims.
Accordingly, the Court DENIES a certificate of appealability. The Court
also DENIES leave to proceed in forma pauperis on appeal as an appeal
cannot be taken in good faith. See FED. R. APP. P. 24(a). This case is
closed.
IT IS SO ORDERED.
Dated: June 20, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 20, 2017, by electronic and/or ordinary mail and also on
Amonte Reid #756082, St. Louis Correctional Facility,
8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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